My clients have learned from their mistakes and currently understand the importance of having the advice of a qualified attorney prior to signing with a publisher. Because these mistakes or pitfalls often come with a hefty price tag down the line, in this article we share with our reader’s important negotiation points that are commonly found in a standard publishing contract.
Some of the important aspects Creatives must be on the lookout for and carefully evaluate with counsel include the following: these important aspects of the publishing as follows:
1. Grant of Rights: As an author starting out, and absent a substantial advance upon execution of the publishing agreement, the author should solely grant the publisher the right to reproduce and distribute the literary work in physical and digital formats while retaining all other rights in the copyright, including, without limitation, the right to make derivative works. Authors must be on the lookout for clauses that include language such as a grant of “all rights and privileges in the work” to the publisher.
2. Assignment clause: This clause becomes highly relevant when trying to collect unpaid royalties. The agreement must clearly state that the author must authorize any assignment of the publisher’s rights under the agreement to a third party. This is to ensure that the assignee (new publisher) has agreed to the exact same terms and conditions, including payment of royalties, accounting provisions and audit of royalty statements.
3. Payment of Royalties: In exchange for allowing the publisher to distribute your book, you are entitled to receive compensation in the form of royalties. Royalties are simply a percentage of the income that the publisher collects by commercially exploiting the work. Authors must negotiate the percentage. You can negotiate fixed percentage for the initial term of the agreement and then propose increases on a sliding scale upon reaching certain sales goals, for example.
4. The reversion clause: A “reversion” is an effective tool to ensure the publisher’s compliance with the terms of the agreement. The most common issue is, of course, the publisher’s failure to pay royalties. By using the reversion clause, authors are able to obtain their rights back from the publisher (hence the word “reversion”) and simply get paid directly or appoint another publisher to administer the work.
5. Authority of Agents. We all know agents are quite important because they often do all the heavy lifting in order to ensure that literary works are picked up by publishers. Similarly important is for authors to make sure that the publishing agreement clearly provides for all notices, statements, and payments to the author and not exclusively the agent. In my practice, I have encountered many issues in which authors believe that their publishers are in breach of the publishing deal to later find out that in fact their agents are misappropriating the author’s royalties and are not being forthcoming regarding the royalty statements and royalty checks that the publisher has sent to the author in care of the agent. Thus, we have compliance by the publisher and a non- compliance and breach of duties by an unethical agent. This creates a dual issue for the author because it must uncover the potential wrongdoing of the agent by possibly accusing the publisher of non- compliance first.
Having the advice of an experienced attorney is crucial not only during negotiations but also when seeking compliance of previously agreed contractual terms and avoiding litigation. In the event that expert advice was not available to the author prior to signing the publishing deal and the author is having issues with payment and other non- compliance, my firm can create cost-effective ways to seek compliance without engaging in costly litigation.
Contact us to learn more or for a case evaluation.